Rudy Giuliani is apparently in violation of New York’s new ethics rules that went into effect one week ago. The former U.S. Attorney for the Southern District of New York, mayor, and now presidential candidate, has failed to label his firm’s web site as “attorney advertising” as required by the new Disciplinary Rules. Law firms large and small, famous and not, with New York offices continue to show widespread ignorance or disregard for the new rules on attorney advertising. While some may have constitutional concerns, only one is known to have brought a legal challenge on that basis.

Despite front page treatment of the news in the New York Law Journal and wide discussion in blogs since the proposed rules were announced last June, a great many firms have committed an ethical violation. (For a presidential candidate, among others, that’s probably not good.)

I wrote last week of the failure by 11 of the largest 15 firms in the nation (with New York offices) to comply with the easiest part of the rules, putting the words “attorney advertising” on the home page of their web sites. This was picked up by Law.com Blog and WSJ Law Blog giving the news a bit more distribution. Many have since complied. A few that are currently in violation of the ethics rules:

• Bracewell & Giuliani (Rudy Giuliani firm, with New York office)
• Baker & McKenzie (largest firm in the U.S., with over 3,000 attorneys)
• Akin Gump (creator and sponsor of SCOTUS Blog, leading blog on the U.S. Supreme Court)
• Morgan Lewis (New York based firm with over 1,000 attorneys)
• McDermott, Will & Emery (leading Chicago firm with NY office)
• Foley & Lardner (leading Milwaukee firm with NY office)
• O’Melveney & Myers (Los Angeles firm with NY office)
• Bryan Cave (largest firm in St. Louis, NY office is home to former Mayor Ed Koch)
• Raoul Felder (high profile matrimonial attorney and TV talking head)

Since a Google search of New York attorneys returns 16 million hits, I didn’t spend too much time on this. It appears clear though from a brief spin through sites large and small that compliance failures are common.

There are a few possible reasons:

• Ignorance – Some lawyers don’t keep abreast of changes in the law (or in this case, disciplinary rules);
• Assumption that someone else has taken care of it;
• Vagueness of the rules: As I wrote last week, the rules apply if the “primary purpose” of the web site is the retention of clients. That definition is both vague and over broad and, I think, is likely to fall to constitutional challenge.

Personally, I think the primary reason is the first: Ignorance. This is not based on scientific survey, of course, but on a version of Occam’s Razor: All things being equal, the simplest answer tends to be the right one.

Other links to the subject:
New Attorney Advertising Rules (Is This Blog an Advertisement?) (this site)
New York Advertising Rules (Sui Generis)
Some More Discussion About New York’s Attorney Advertising Rules (New York Civil Law)
NYSBA Rules Fiasco (The Common Scold)

[Update 2/15/07: Rudy Giuliani Finally Complies With New York Ethics Rule)

The vagueness of New York’s new attorney advertising rules is bound to cause First Amendment problems. Speech is restricted with the use of vague terms.

Yesterday, I published a list of major law firms with New York offices that had not complied with the easiest part of the new attorney advertising rules, marking their home page as “attorney advertising.” (Some have since added the words.) While I poked a bit of fun at them in the process for not doing so, some can possibly make an argument for not putting the words up by claiming that the retention of clients is not the “primary purpose” of the site.

This is illustrated by a Carolyn Elefant post at My Shingle that inevitably leads to yet more issues. She is admitted to practice in New York, but her energy regulatory practice is out of Washington D.C. She says she won’t put the Scarlet A of advertising up because her web site is multi-dimensional and advertising isn’t the “primary purpose.” She acknowledges though, that “one purpose of my website and blog is to retain clients.”

So how, exactly, will “primary purpose” be defined? And does that refer to New York clients being the “primary purpose?”

I wrote of the vagueness issue when I asked, Is My Family Photograph An Ethical Violation in New York?, and followed up with another post here. There are more problems with phrases such as “techniques to obtain attention” and portrayal of lawyers “exhibiting characteristics clearly unrelated to legal competence.”

Two other law firm examples before I go, which are the bookends to Ms. Elefant’s gray area of the “primary purpose” of a web site: Nicole Black over at Sui Generis has a website for her business doing work on a contract basis for New York firms. Since the rules do “not include communications to …other lawyers” her site need not have The Mark.

My own site as a New York personal injury attorney, however, has The Mark at the bottom. While I think many of the rules will be struck down as unconstitutional due to their vagueness, I must face the reality that personal injury firms were the target of much of the rules. And I’d rather write about the issues than be the test case.

The litigation has already started, covered in this post at Sui Generis, complete with link to the Complaint.